Madhya Pradesh High Court
Smt. Shashi Devi vs The State Of Madhya Pradesh on 16 August, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1
WA-1343-2019
THE HIGH COURT OF MADHYA PRADESH
WA-1343-2019
[Smt. Shashi Devi vs. State of M.P. & Ors.]
Gwalior, Dated 16/08/2019
Shri Abhishek Tiwari, learned counsel for the Appellant.
1.Heard on admission.
2. Challenge is to an order dated 23/01/2019 passed in Writ Petition No.1428/2019; whereby, learned Single Judge dismissed the claim for compassionate appointment sought by the petitioner for her son in lieu of the death of her husband who died on 11/10/2013 on the findings that two of her sons are already serving the Indian Army, relying on the clause 4.1 of the policy dated 29/09/2014 which forbids appointment on compassionate ground in case any of the family member of the deceased government servant.
3. A Division Bench of this Court in Prajesh Shrivastava vs. State of M.P. & Ors.:[2016 (3) M.P.L.J. 88] had an occasion to dwell on the issue similar to as arises for consideration. It is held therein:
"17. It was thus clear that the expression 'member of family', as it appear in the Policy of compassionate appointment, which we are concerned with, was not under consideration before the Supreme Court. Therefore, the support drawn therefrom to interpret the expression "member of family", in our humble opinion, is misplaced.
18. In Prakash Parmar (supra), the Writ 2 WA-1343-2019 Court though was dwelling upon Clause 4.1 of the Policy; however, borrowed the definition of 'family' from M.P. Fundamental Rules and M.P. Civil Services (Medical Attendance) Rules, 1958 (for brevity '1958 Rules).
19. Under M.P. Fundamental Rules, - (8) Family means a Government servant's wife or husband, as the case may be, residing with the Government servant and legitimate children and step children residing with and wholly dependent upon the Government servant. Except for purposes of Section XVI- A of the Supplementary Rules in Appendix V, it includes, in addition, parents, sisters and minor brothers, if residing with and wholly dependent upon the Government servant.
(b) For the purpose of Section XI, it includes in addition unmarried and widowed sisters and minor brothers if residing with and wholly dependent upon the Government servant.
Note.- Government servant's wife or husband, as the case may be, legitimate children, step children, father, mother, step mother, unmarried and widowed sisters,minor brothers who reside with the Government servant and whose income from all sources including pension (inclusive of temporary increase/relief in pension and pension equivalent to deathcum- retirement gratuity benefits) does not exceed Rs.1275 p.m. may be deemed to be wholly dependent upon the Government servant.
Notes. -(1) Not more than one wife is included in the term 'family' for the purposes of these rules.
(2) An adopted child shall be considered to be a legitimate child if, under the personal law of the Government servant, adoption is legally recognised as conferring on it the 3 WA-1343-2019 status of a natural child.
20. So far as definition of 'family' under 1958 Rules is concerned, it means -
"(i) The wife or husband of a Government servant,
(ii) The parents, legitimate children including children adopted legally and step children of such Government servant residing with and wholly dependent on the Government servant."
21. However, clarification was issued by the Public Health Department vide its Circular No.2273/1697/XVII/Med.(iii) dated 5.5.1960, clarifying the expression 'residing with' stating - "a question has been under consideration of Government whether the term 'residing with' occurring in Rule 2(d) (ii) of 1958 Rules should be held to mean physical residence to the family members of Government servant at his headquarters. Government have now decided that the members of Government servant's family who are kept by the Government servant concerned at a place other than his own residence for education or treatment or for the sake of convenience to himself should be deemed to be residing with him. The said clarification issued by the Government thus leaves no iota of doubt that under 1958 Rules, if members of the family is kept away from the residence of Government servant or for the sake of convenience to himself is treated to be a member of family.
22. This aspect seems to have escaped from the consideration in the case of Prakash Parmar (supra).
23. Furthermore, in Ku. Priyanka Dixit (supra) and Prakash Parmar (supra), the emphasis is on the fact that though an incumbent is a member of the family but 4 WA-1343-2019 cannot be treated as such because living separately and not residing with the Government servant.
24. The word 'reside' came to be considered in Mst. Jagir Kaur (supra) in the context of the jurisdiction of the Magistrate under Section 488 of the Code of Criminal Procedure, 1898 for entertaining the petition of a wife for maintenance, wherein their Lordships were pleased to hold-
"6. ....The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense .."
25. Similarly, in Union of India v. Dudh Nath Prasad (2000) 2 SCC 20, it is held -
"14. The word '"reside" has been defined in the Oxford Dictionary as "dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place." The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a "considerable time".
26. Therefore, merely because a member of the family of Government servant, who is in the employment in government service, or corporation, board, council, commission etc., has started residing separately, he cannot be excluded from the class under Clause 4.1 of the Policy.
27. There are other reasons why we are of the opinion that the family member in employment but living separately has to be treated as a member of family of deceased Government servant.
28. Trite it is that appointment to public 5 WA-1343-2019 service is to be on merit in accordance with the Rules furthering the principle enunciated in Article 16 of the Constitution of India, which mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Exception, however, has been carved out in favour of dependents of employees who die in harness and leaving their family in penury and without any means of livelihood. For that, State Government has evolved a policy for appointment on compassionate ground with an object to provide immediate relief to such bereaved family.
29. While dwelling upon this aspect, it has been held by the Supreme Court in Haryana State Electricity Board v. Hakim Singh (1997) 8 SCC 85 -
"8. The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception belief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole bread- winner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an 6 WA-1343-2019 alternative mode of recruitment to public employment."
30. Thus, while acknowledging the exception carved out for appointment on compassionate ground, it has been categorically observed that "object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment". Similarly, in Mumtaz Yunus Mulani v. State of Maharashtra (2008) 11 SCC 384, it is held -
"11. However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis."
31. The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the deceased family is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted. If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when "no one in 7 WA-1343-2019 the family" is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner.
32. We, therefore, respectfully disagree with the interpretation given to Clause 4.1 of the Policy for compassionate appointment in Ku. Priyanka Dixit (supra) and Prakash Parmar (supra) and hold that where in a family of deceased Government servant, any of the member eligible for compassionate appointment is in the employment in government service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground."
4. When the impugned order is tested on the anvil of above reasons, it cannot be faulted with.
5. Consequently, Appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Vivek Agarwal)
pwn* Judge Judge
Digitally signed by
PAWAN KUMAR
Date: 2019.08.21
12:29:08 +05'30'